Supreme Court Hears Fox Indecency Case

11/05/2008 1:35 AM Eastern

By: Ted Hearn

Washington -- The U.S. Supreme Court heard arguments Tuesday on the Federal Communications Commission's policy of punishing TV stations for the one-time broadcast of the F-word and S-word during early evening hours when children are flipping through the channels.

Fox Television Stations Inc., owned by Rupert Murdoch's News Corp., challenged the new policy after the FCC held that entertainers Cher and Nichole Richie violated indecency rules by uttering the F-word and S-word during the live broadcast of the 2002 and 2003 Billboard Music Awards.

It was the court's first major review of broadcast indecency law in 30 years, taking a case in which a lower court invalidated the FCC's new policy of punishing "fleeting" indecency after decades of going after radio and TV stations only for airing prolonged diets of dirty language.

The court's session lasted 60 minutes and not once during that time did any of the nine justices or appellate counsel say or spell the F-word or S-word. Justice Clarence Thomas and Samuel Alito did not speak at all.

Fox attorney Carter Phillips -- who at times ran into strong resistance from Chief Justice John Roberts and Justice Antonin Scalia -- said the country had grown more tolerant of non-literal uses of language that once had no place in polite society.

"Do you think your clients have had anything to do that?" Scalia said to laughter in the courtroom.

Phillips disagreed, replying, "Go to a baseball game, Justice Scalia. You hear those words every time you go to a ballgame."

Although the FCC didn't fine Fox for the Cher and Richie incidents, it is authorized to levy fines up to $325,000 per offense for airing indecent content from 6 a.m. to 10 p.m. CBS was fined $550,000 for airing Janet Jackson's breast exposure during the 2004 Super Bowl halftime show, but the FCC was overturned on appeal.

The FCC defines indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." The regulations do not apply to cable TV, satellite TV or satellite radio.

U.S. Solicitor General Gregory Garre, defending the FCC's broadcast indecency crackdown, said Fox wanted the court to forbid the FCC from policing the airwaves, a standard which would allow "the extreme example of Big Bird dropping the F-bomb on Sesame Street ..."

The FCC has claimed that its new enforcement policy is context-driven, meaning that it won't automatically fine a broadcaster for airing the F-word and S-word, whether fleeting or repetitive.

Roberts indicated support for that effort.

"All they're saying is that just because it's used once doesn't mean you are out of the woods altogether," he said. "This is the point they make, that in one context, it's completely gratuitous; in the other context, it's not."

That standard was untenable, Phillips claimed, because TV stations don't have a predictable regulatory regime guiding them. Dozens of ABC affiliates refused to air the Oscar-winning war film Saving Private Ryan, which in February 2005 the FCC said was not indecent despite multiple scenes in which the F-word and S-word were used.

Phillips said a public TV station in Vermont, fearing FCC retaliation, would not allow a senatorial candidate to participate in a televised debate after "that candidate had used expletives in a previous public forum." The station, he added, didn't have tape-delay technology that FCC policy is forcing broadcasters to acquire and staff.

"That, to me, is the quintessential example," Phillips said. "That's a system, it seems to me, this court ought not to countenance."

Uncertainty about the predictability of FCC enforcement was a concern for Justice Ruth Bader Ginsburg.

"There seems to be no rhyme or reason for some of decisions the commission has made," Ginsburg said. "I mean, the Saving Private Ryan case was filled with expletives."

Even Roberts appeared to raised a red flag on inconsistent enforcement. He noted that the FCC declined to act against CBS for airing the word "bull-s-word-er" because it happened on the Early Show in a "bona fide news interview" with a contestant from Survivor: Vanuatu.

"I suppose the most difficult case for you is the Early News [sic] where you have just a fleeting expletive, unlike Saving Private Ryan and the others," Roberts said. "I mean, how do you distinguish the Early News case from the ones before us?"

Garre replied, "The [FCC] has determined that news programming would be treated differently, with greater restraint, because of the different values present in that situation."

Phillips didn't get far when he tried to explain that TV sets have program-blocking technology that can shield children from indecent program, a solution preferable to content-based regulation of speech protected by the First Amendment.

"I'm not sure that works," Justice Anthony Kennedy said. "I haven't looked at the statistics on one-parent families, working parents, and so forth. Those factors have to be considered."